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TMI Blog2015 (1) TMI 507X X X X Extracts X X X X X X X X Extracts X X X X ..... t in land. 2) On the facts and in the circumstances of the case, the Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmadabad ought to have upheld the order of the Assessing Officer. 3) It is therefore, prayed that the order of the Ld. Commissioner of Income-Tax (Appeals) - XX, Ahmadabad may be set-aside and that of the Assessing Officer be restored." 2.1 In Cross Objection No. 199/Ahd/2012, assessee has filed the appeal on the following grounds: "1.0 The Ld. Commissioner of Income-tax (Appeals) erred in law and on facts in upholding the action of the ld. A.O. in initiating proceedings under section 147 of the Income Tax Act, 1961 despite the fact that there was no material before the ld. A.O. to arrive at reasonable belief for escapement of income. He has further erred in law and on facts in concluding that the ld. A.O. observed due procedure of law while reopening the assessment. 2.0 The Ld. Commissioner of Income-tax (Appeals) erred in law and on facts in dismissing Ground Nos. 1 to 4 raised before him without appreciating them in proper context." 3. On the basis of information received from DCIT, Central Circle, Assessing Officer recorded reasons for reopening the assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Tharad Char Rasta, Tharad. (4) Pravinbhai Odhavji Mistry, "Vaishali" Cinema, Nadiad... 25% share Some portion of this land had been sold. "" (2) On page 4 of the assessment order for the A.Yr. 2007-08 in the case of Shri. Mavjibhai M. Desai there is a mention of investment of Rs. 12,46,500/- in land at Tharad, Survey Nos, 191 and 192 and against Survey No. 191 and 192 an amount of Rs. 17,82,750/- has been shown against that column. (3) It may also be pointed out that there is no mention of name of any party, either purchaser or seller in the assessment order nor there is any mention of these details in the seized papers Nos. 26 to 29, copies of which are enclosed with these submissions for your kind perusal. Although the A.O. has referred to page No. 26 in the assessment order there is absolutely no name or amount which could be co-related to any of the appellants in this group of cases. (4) It may once again be submitted that although the statement of Shri. Mavjibhai M. Desai was recorded in the year 2007, the Department could not initiate any action against any of these appellants for want of categorical evidence against them. This is precisely the reason why the notices u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the Assessing Officer in all these cases, for initiating proceedings u/s 147 and for making the impugned additions in all these cases of the Appellants before your honour. (8) The questions and answers in the statement of Shri. Mavjibhai M. Desai cannot tie said to be sufficient to uphold the impugned additions made by the A. O. in the cases of all these appellants. (9) Although the appellant had requested the A.O. to supply them a copy of the statement of Shri Mavjibhai M. Desai and also the copies of loose papers seized from his premises, in their application filed in June, 2011 and again reminded September, 2011, the same were supplied under letter dated 26.12.2011 by the Assessing Officer and finalized the Assessment on 29.12.2011. 3. In view of the above facts of the case of the appellant before your honour, it is submitted that the appeal may kindly be allowed." Having considered the same, CIT(A) granted relief to the assessee. 3.2 Same has been opposed before us on behalf of Revenue inter alia submitting that CIT(A) was not justified in deleting the addition of Rs. 17,82,750/- made on account of undisclosed investment in land. Accordingly, order of CIT(A) be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paid etc. irrespective of his accepting the said amount as undisclosed income in his hands or not, not even a shared of evidence is on record to suggest that assessee paid any on money towards the purchase of said properties. In assessment order, Assessing Officer did not make any attempt that on money was paid by assessee. Mere statement of a third party could not be the basis for making addition. Apart from this, in assessment proceeding at the instance of Bench, cross examination was directed to be conducted by Bench inter alia nothing was found on record to suggest that assessee has made payment of on money in the investment in land in question. Under facts and circumstances, same has been rightly deleted by CIT(A). We uphold the same. 4. Now we take Cross Objection No. 199/Ahd/2012, filed by assessee. 4.1 In view of our decision in Revenue's appeal in ITA No. 1878/Ahd/2012, the issue raised by way of Cross Objection goes academic. Same is dismissed being academic same may be agitated as and when situation arises. 5. As a result, this appeal of Revenue and corresponding Cross Objection of assessee are dismissed. 6. In ITA No. 1892/Ahd/2012, Revenue has filed the appeal on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l submissions and material on record, as stated earlier we find that only basis on which impugned addition was made was answer No. 18 of the statement recorded from Shri Mavjibhai on 29.03.2007 as discussed in para 3 to 3.3 in case of ITA No.1878/Ahd/2012 Said Mavjibhai was not even clear on the exact quantum of the consideration. This statement was not supported by any evidence in the form of banakhat, dates and mode of payment with regards to on money received. Even there was no mention of assessee's name in statement of Shri Mavjibhai. Assessing Officer failed to make any efforts to go beyond the statement given by Shri Mavjibhai (for whatever reasons best known to him) to justify the allegation that on money was paid to assessee. Mere statement of a third party could not be the basis for making addition in absence of any corroborative evidence. Assessee is agriculturalist and was not filing returns of income. For the year under consideration, return of income was filed in response to notice u/s. 148 admitting only agricultural income. The immovable property under consideration is agricultural land and there is nothing on record to suggest that agricultural land sold was 'capita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t although he has asked for an opportunity to cross-examine Shri Mavjibhai Desai, on the basis of whose statement, this action u/s 147 of the Act was initiated by the A.O. as per the reasons recorded u/s 148(2) of the Act." 11. Issue in this appeal is identical to that of ITA No. 1892/Ahd/2012 for A.Y. 2006-07. Facts being similar as discussed in para 7 & 7.1 of ITA No. 19892/Ahd/2012, so following same reasoning, we are not inclined to interfere in the finding of CIT(A) who has rightly deleted addition of Rs. 24,52,765/- made on account of undisclosed income from land transaction in question. Same is upheld and the issue raised by way of Cross Objection goes academic. So, same is dismissed being academic and same may be agitated as and when situation arises for the same. 12. In result, both Revenue's appeal and Cross Objection of assessee are dismissed. 13. In ITA No. 1895/Ahd/2012, Revenue has filed the appeal on the following grounds: "1). The Ld. Commissioner of Income-Tax (Appeals)-XX, Ahmadabad has erred in law and on facts in deleting the addition of Rs. 10,90,000/- made on account of undisclosed investment in land. 2) On the facts and in the circumstances of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as against the consideration of Rs. 1.6 lacs as per registered sale deed while actual consideration was alleged to be Rs. 12.5 lacs. A copy of said statement was furnished to assessee, opportunity of cross examination was also provided and assessee's explanation was not found acceptable. So, impugned addition was made towards on money paid for purchase of property by Assessing Officer. 14.2 In first appeal, the stand of assessee has been that Shri Mavjibhai in his statement did not make any disclosure of on money in question; in his statement the only question on the issue was question and answer no.20; nowhere in the documents referred to in said question there was any mention of on money payment; statement of Shri Mavjibhai was not supported by any documentary evidence as mentioned by Assessing Officer in para 8 of impugned assessment order. Moreover, assessee was present on the dates of cross examination i.e. 05.12.2011 and 09.12.2011 but Shri Mavjibhai did not appear on those dtes and since there was no evidence supporting payment of on money, impugned addition was not justified. Having considered the same, CIT(A) observed that only basis on which impugned addition was made w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and on facts in passing the appellate order in the name of deceased Shri Midhusinhji V. Vaghela though the appeal before him was filed by the L/h of deceased Smt. Surajkuvarba M. Vaghela. 3.0 The Ld. Commissioner of Income-tax (Appeals) erred in law and on facts in upholding the action of the ld. A.O. in initiating proceedings under section 147 of the Income Tax Act, 1961 despite the fact that there was no material before the ld. A.O. to arrive at reasonable belief for escapement of income. He has further erred in law and on facts in concluding that the ld. A.O. observed due procedure of law while reopening the assessment. 4.0 The Ld. Commissioner of Income-tax (Appeals) erred in law and on facts in upholding the action of the ld. A.O. under provisions of section 147 of the Income Tax Act, 1961 despite the fact that there was no material before the ld. A.O.; to arrive at reasonable belief for escapement of income. He has further erred in law and on facts in concluding that the ld. A.O. observed due procedure of law while re-opening the assessment. 5.0 The Ld. Commissioner of Income-tax (Appeals) further erred in law and on facts in dismissing following Ground No. 2 raised bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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